Judge strikes down Trump’s use of Alien Enemies Act to deport Venezuelans
COURTS
ADRIANA LOUREIRO FERNANDEZ / THE NEW YORK TIMES
Venezuelan migrants arrive March 20 in Maiquetia, Venezuela. A ruling Thursday, which is limited to the Southern District of Texas, prohibits the Trump administration from using a wartime law to deport Venezuelans because the president’s claims about a Venezuelan gang do not add up to an “invasion.”
Venezuelan migrants arrive March 20 in Maiquetia, Venezuela. A ruling Thursday, which is limited to the Southern District of Texas, prohibits the Trump administration from using a wartime law to deport Venezuelans because the president’s claims about a Venezuelan gang do not add up to an “invasion.”
A federal judge on Thursday permanently barred the Trump administration from invoking the Alien Enemies Act, an 18th-century wartime law, to deport Venezuelans it has deemed to be criminals from the Southern District of Texas, saying that the White House’s use of the statute was illegal.
The decision by the judge, Fernando Rodriguez Jr., was the most expansive ruling yet by any of the numerous jurists who are currently hearing challenges to the White House’s efforts to employ the powerful but rarely invoked law as part of its wide-ranging deportation plans.
The 36-page ruling by Rodriguez, who was appointed by President Donald Trump, amounted to a philosophical rejection of the White House’s attempts to transpose the Alien Enemies Act, which was passed in 1798 as the nascent United States was threatened by war with France, into the context of modern-day immigration policy.
The Supreme Court has already said that any Venezuelans the White House wants to expel under Trump’s proclamation invoking the act must be given a chance to challenge their removal. But Rodriguez’s ruling went further, saying that the White House had improperly stretched the meaning of the law, which is supposed to be used only against members of a hostile foreign nation, in times of declared war or during a military invasion.
While Rodriguez’s decision applied only to Venezuelan immigrants in the Southern District of Texas — which includes cities such as Houston, Brownsville and Laredo — it could have an effect, if not a binding one, on some of the other cases involving the administration’s use of the Alien Enemies Act.
“The court concludes that as a matter of law, the executive branch cannot rely on the AEA, based on the proclamation, to detain the named petitioners and the certified class, or to remove them from the country,” Rodriguez wrote.
He also found that the “plain ordinary meaning” of the act’s language, like “invasion” and “predatory incursion,” referred to an attack by “military forces” and did not line up with Trump’s claims about the activities of Tren de Aragua, a Venezuelan street gang, in a proclamation invoking the Alien Enemies Act.
The American Civil Liberties Union has filed at least eight lawsuits challenging the statute in Texas, New York, Colorado, Pennsylvania, Nevada, Washington and Georgia. Federal judges in six of those cases have issued provisional orders stopping the administration from using it to expel Venezuelans accused of belonging to Tren de Aragua to a prison in El Salvador.
Lee Gelernt, the ACLU’s lead lawyer in the cases, praised the ruling by Rodriguez. “This decision correctly recognized that the president cannot simply declare there’s an invasion and invoke a wartime authority during peacetime,” Gelernt said. “As the court recognized, Congress never intended this law to be used in this manner.”
The White House did not immediately respond to a message seeking comment. Early in his decision, Rodriguez rebuffed an argument by the Justice Department that he lacked the authority to even consider the White House’s use of the act, which has only been used three times in U.S. history: during the War of 1812 and during World Wars I and II.
Department lawyers have consistently maintained that even judges have no power to intrude on the president’s decisions in matters of foreign policy. And while Rodriguez acknowledged that the Alien Enemies Act gives the president “broad powers,” he also said that judges still had the ability to determine whether presidents were using the law correctly.
“The court retains the authority to construe the AEA’s terms and determine whether the announced basis for the proclamation properly invokes the statute,” he wrote. Notably, however, the judge disclaimed authority to examine the truth of Trump’s underlying statements, including his assertion that Tren de Aragua is controlled by the Venezuelan government — a claim that U.S. intelligence agencies disagree with.
The judge said that because such assessments were for the political branches to determine, he had to accept Trump’s findings at face value. Still, Rodriguez determined that Trump’s use of the law did not comport with the definitions of key terms in the act.
He rejected, for example, the president’s claims that the arrival of large numbers of Tren de Aragua members to the United States could be construed as an invasion or what the act refers to as a “predatory incursion.”
“In the significant majority of the records, the use of ‘invasion’ and ‘predatory incursion’ referred to an attack by military forces,” Rodriguez wrote, adding that those terms “involve an organized, armed force entering the United States to engage in conduct destructive of property and human life in a specific geographical area.”
Rodriguez, 56, was the first Latino Trump nominated to the federal bench during his first term. He was a partner at the powerful Houston law firm Baker Botts, and for years worked in Latin America with International Justice Mission, an evangelical Christian group that fights human trafficking.
Rodriguez’s order applies to a class of plaintiffs. That means that unless Thursday’s ruling is overturned on appeal, the government will be barred from detaining or removing anyone from his district using Trump’s invocation of the Alien Enemies Act.
While the ACLU has largely been successful in stopping the Trump administration from continuing to deport people under the act, it has not yet been able to bring back to the United States the first batch of nearly 140 Venezuelans who were removed under the law to El Salvador on March 15. Those men remain in the custody of jailers at a notorious prison known as the Terrorism Confinement Center, or CECOT.
The decision by the judge, Fernando Rodriguez Jr., was the most expansive ruling yet by any of the numerous jurists who are currently hearing challenges to the White House’s efforts to employ the powerful but rarely invoked law as part of its wide-ranging deportation plans.
The 36-page ruling by Rodriguez, who was appointed by President Donald Trump, amounted to a philosophical rejection of the White House’s attempts to transpose the Alien Enemies Act, which was passed in 1798 as the nascent United States was threatened by war with France, into the context of modern-day immigration policy.
The Supreme Court has already said that any Venezuelans the White House wants to expel under Trump’s proclamation invoking the act must be given a chance to challenge their removal. But Rodriguez’s ruling went further, saying that the White House had improperly stretched the meaning of the law, which is supposed to be used only against members of a hostile foreign nation, in times of declared war or during a military invasion.
While Rodriguez’s decision applied only to Venezuelan immigrants in the Southern District of Texas — which includes cities such as Houston, Brownsville and Laredo — it could have an effect, if not a binding one, on some of the other cases involving the administration’s use of the Alien Enemies Act.
“The court concludes that as a matter of law, the executive branch cannot rely on the AEA, based on the proclamation, to detain the named petitioners and the certified class, or to remove them from the country,” Rodriguez wrote.
He also found that the “plain ordinary meaning” of the act’s language, like “invasion” and “predatory incursion,” referred to an attack by “military forces” and did not line up with Trump’s claims about the activities of Tren de Aragua, a Venezuelan street gang, in a proclamation invoking the Alien Enemies Act.
The American Civil Liberties Union has filed at least eight lawsuits challenging the statute in Texas, New York, Colorado, Pennsylvania, Nevada, Washington and Georgia. Federal judges in six of those cases have issued provisional orders stopping the administration from using it to expel Venezuelans accused of belonging to Tren de Aragua to a prison in El Salvador.
Lee Gelernt, the ACLU’s lead lawyer in the cases, praised the ruling by Rodriguez. “This decision correctly recognized that the president cannot simply declare there’s an invasion and invoke a wartime authority during peacetime,” Gelernt said. “As the court recognized, Congress never intended this law to be used in this manner.”
The White House did not immediately respond to a message seeking comment. Early in his decision, Rodriguez rebuffed an argument by the Justice Department that he lacked the authority to even consider the White House’s use of the act, which has only been used three times in U.S. history: during the War of 1812 and during World Wars I and II.
Department lawyers have consistently maintained that even judges have no power to intrude on the president’s decisions in matters of foreign policy. And while Rodriguez acknowledged that the Alien Enemies Act gives the president “broad powers,” he also said that judges still had the ability to determine whether presidents were using the law correctly.
“The court retains the authority to construe the AEA’s terms and determine whether the announced basis for the proclamation properly invokes the statute,” he wrote. Notably, however, the judge disclaimed authority to examine the truth of Trump’s underlying statements, including his assertion that Tren de Aragua is controlled by the Venezuelan government — a claim that U.S. intelligence agencies disagree with.
The judge said that because such assessments were for the political branches to determine, he had to accept Trump’s findings at face value. Still, Rodriguez determined that Trump’s use of the law did not comport with the definitions of key terms in the act.
He rejected, for example, the president’s claims that the arrival of large numbers of Tren de Aragua members to the United States could be construed as an invasion or what the act refers to as a “predatory incursion.”
“In the significant majority of the records, the use of ‘invasion’ and ‘predatory incursion’ referred to an attack by military forces,” Rodriguez wrote, adding that those terms “involve an organized, armed force entering the United States to engage in conduct destructive of property and human life in a specific geographical area.”
Rodriguez, 56, was the first Latino Trump nominated to the federal bench during his first term. He was a partner at the powerful Houston law firm Baker Botts, and for years worked in Latin America with International Justice Mission, an evangelical Christian group that fights human trafficking.
Rodriguez’s order applies to a class of plaintiffs. That means that unless Thursday’s ruling is overturned on appeal, the government will be barred from detaining or removing anyone from his district using Trump’s invocation of the Alien Enemies Act.
While the ACLU has largely been successful in stopping the Trump administration from continuing to deport people under the act, it has not yet been able to bring back to the United States the first batch of nearly 140 Venezuelans who were removed under the law to El Salvador on March 15. Those men remain in the custody of jailers at a notorious prison known as the Terrorism Confinement Center, or CECOT.